Does Criminal Law Deter?
This chapter examines that fundamental question of whether criminal law deters. Topics discussed include the prerequisites to deterrence, aggregated-effect studies, and the possibilities and impossibilities of improving deterrent effect. It argues that given the rarity of situations in which the prerequisites of deterrence are present and of nonnegligible effect, the standard use of deterrence analysis to formulate criminal law doctrine seems wildly misguided. At the very least, deterrence analysis ought to be considered in criminal law debate only after a showing that the deterrence-prerequisite conditions might actually exist.
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